Know Your Constitutional Rights, Pt. 1

"How is hardcore pornography speech? Have you ever seen hardcore? How familiar are you with hardcore? What exactly is speech about twelve guys ejaculating on the face of one woman? How is this constitutionally protected? How is reasoned discourse chilled by obscenity prosecutions of gang bang producers? Do you think that the writers of the Bill of Rights had in mind Max Hardcore and JM Productions' bukkake videos when they crafted the First Amendment? Do you truly feel that your rights as a journalist would be infringed upon if you could no longer rent DVDs of 100 guys ejaculating on one woman?"

Of course, this guy isn't the first to ask such questions, and likely won't be the last, but the preliminary answer comes from a book I've just begun reading, which purchase was inspired by a lecture I saw/heard the author give on C-SPAN2 a week or so ago.

The book is Retained By The People, by Daniel A. Farber, a law professor at UC-Berkeley, and the publicity accompanying the book's release says the guy is "one of the most frequently cited American legal scholars," and that's he's taught at several leading university law schools over the years ... which probably means he has little or no trial experience, but whatthehell...

If the phrase that forms the title of the book seems familiar, it's because it's from the Ninth Amendment to the U.S. Constitution, which reads in full (though minus the superfluous commas), "The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people."

The reason that amendment is part of the first ten changes (amendments) that the citizens of the United States, through their state legislatures, made to the main document is pretty simple, according to Farber:

"Under this point of view [of the Framers of the Constitution, up through the passage of the Fourteenth Amendment], people don't 'get rights'; rights don't exist because somebody graciously lists them in a document and gives them rights. The Declaration of Independence speaks of 'unalienable rights' which people are 'endowed by their creator,' and that is, in a nutshell, much of the early view of rights. The Framing generation, in particular, thought the law was not limited to specific statutes or even court cases... They really just did not have that sense that if it's not written down, it's not a right. They thought it was a right first, and you wrote it down afterwards."

Now there's a kick in the ass right there, since pretty much all of the conservatives who have been shouting about "judicial activism" for the last five years or so have claimed that the courts have been "inventing rights" out of thin air; rights for which there is no basis in the Constitution.

"Paradoxically," says Farber, "most of these people claim to believe in the original intent of the Framers, and they claim to believe that judges should just follow the text of the Constitution. So to some extent, these people have claimed the high ground: They're not making political decisions; they're simply following what the history and language of the Constitution tell them to do; let the chips fall where they may... It's their opponents who are the ones who are being political and just reading their personal values into the Constitution."

But that's not what Farber's researches tell him.

"During the campaign to get approval for the Constitution, one of the major issues was the lack of a Bill of Rights," Farber explains. "They [the Framers] had a number of theories of what was wrong with a Bill of Rights. For one thing, the federal government just wouldn't be strong enough to violate any of these rights... But another theory was, it would list some rights, and if they make a list, it'll be incomplete; you can't list all the rights that people have, and if the list is incomplete, people will assume that the rights that were left off the list were meant to be denied; that only the rights on the list would be observed, and that the other rights would in some sense be superceded or put aside - and therefore since you can't do a complete list, and since a partial list would be dangerous, better not to have a list at all and just leave all the rights unenumerated in the first place.

"Those arguments had some success, but ultimately they didn't fly politically," Farber concludes, "and as part of the condition for ratifying the Constitution, the supporters of the Constitution agreed to add a Bill of Rights, and James Madison was the one who took the lead in this effort to add the Bill of Rights. And he had spent a lot of time thinking about bills of rights and what they were good for and what they weren't good for, and one of the arguments that he'd been very attracted to was this idea that the list would be incomplete, and that would be bad. So as he explained when he introduced the Bill of Rights, he added a provision to deal with that argument, and that provision was the Ninth Amendment.

"Now, when you think about it," Farber continues, "that's exactly the language you would use to say that there are unenumerated rights. You would say, 'Yes, there are enumerated rights, but that's not a complete list.' How else could you say that better?... And if you read carefully what Madison said in introducing the Ninth Amendment, he really nailed down the fact that that's what he was trying to do."

And while Farber admits that there's "not a magical formula" for figuring out what is an unenumerated right and what isn't, he thinks there are some "pretty clear guidelines that can often be helpful in resolving that question," including observing what society as a whole appears to accept, how various state and local courts have ruled on certain issues, and what other countries think of the activity under discussion, both in their societies and in their courts.

And what case does Farber use as an example of where the Supreme Court decided an issue based on the unenumerated rights concept? Lawrence v. Texas, the ruling that struck down all the laws prohibiting consensual sodomy between adults!

"Did the Court just say, 'Oh, no, we believe in gay rights and therefore we're going to rule this way?'" Farber asks rhetorically. "No. In fact, the Court looked at a fair amount of evidence that showed that the previous decision [Bowers v. Hardwick] was just out of tune with contemporary society and contemporary views of human rights."

In fact, Lawrence was decided on the basis of substantive due process, a concept derived from the first clause of the Fourteenth Amendment: "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

See, Texas wasn't applying its anti-sodomy statute to everyone; it was only busting gays for ass-fucking and cocksucking, while leaving heteros doing the same things alone - a clear violation of the "equal protection" concept. And Farber comments in his lecture that he thinks the substantive due process argument is "in vogue" currently, and that's why many attorneys have used it ... but that the real basis to overturn Lawrence should have been on the "unenumerated rights" concept of the Ninth.

In his book, Farber mentions other instances where he feels the Ninth Amendment should be (or have been) used to argue for certain unenumerated rights, such as the right to use birth control (see Griswold v. Connecticut) and to get an abortion (see Roe v. Wade); the right to an adequate basic education; the right to travel freely at home and in and out of the U.S.; the right to be protected from private violence (Farber cites a case of a boy beaten into a permanent coma by his father while government officials, who knew of the father's propensity for violence, did nothing to protect the boy); and the right to refuse unwanted medical treatment, including terminally-ill patients' right to reject life support.

And as Farber would no doubt agree, that list is hardly all-inclusive of the unenumerated rights Americans have under the Constitution.

But "unenumerated rights" scares the piss out of the theocons because, for one thing, it means that there isn't a document they can go to which lays out in excruciating detail some limited list of rights that American citizens have - and no more - and that idea worries them; sort of the Heisenberg Uncertainty Principle as applied to law. It's got to do with their "strict father" view of life - a subject I'll tackle when I review George Lakoff's Whose Freedom?, another excellent book that I'm about halfway through - but for now, it's enough to understand that those kind of people are more at home under a monarch than participating in a republic or democracy.

Recall that Lou Sirkin and Jennifer Kinsley used the substantive due process argument to get a dismissal of charges against Extreme Associates in district court in Western Pennsylvania, and further recall that the Third Circuit U.S. Court of Appeals didn't touch that argument in overturning the dismissal and reinstating the charges; the appeals court simply said that Judge Lancaster was applying principles to the extreme case that the Supreme Court had ratified in other situations not involving commerce in sexually explicit material, and that therefore, Judge Lancaster's use of those principles was, in essence, the judicial equivalent of premature ejaculation.

However, if the defense team had gone with a nearly-identical Ninth Amendment argument - that Extreme had an unenumerated right to sell its product, as long as kids and non-consenting adults didn't see it, especially in light of the Supreme Court's long-standing doctrine that private ownership of obscene material is constitutionally protected (Stanley v. Georgia, a Ninth Amendment case, though not styled as such, if there ever was one) - they probably still would have been shut down by the Third Circuit because the number of times that Supreme Court decisions have even mentioned the Ninth Amendment can be counted on the fingers of one hand ... with a couple of fingers left over.

I'm sure there's much more detail in Farber's book that I'll be reporting on once I've finished it, but his main point certainly applies to the questions asked above: It doesn't matter whether "twelve guys ejaculating on the face of one woman" is "speech" under the First Amendment; the ability of consenting adults to (be paid to) engage in that behavior, and the ability of someone to videotape it and market it to other consenting adults (even in light of the Commerce Clause), are clearly unenumerated rights under the Ninth Amendment.

And whether "the writers of the Bill of Rights had in mind Max Hardcore and JM Productions' bukkake videos when they crafted the First Amendment" is equally irrelevant; the Framers may never even have considered whether the federal government (and through the Fourteenth Amendment, state governments) had any power to control citizens' sexual behavior, but in case some later versions of the government did, the Framers left one overriding legacy of freedom which now, over 200 years later, has been nearly forgotten - but which virtually calls out to be recognized once again: The Ninth Amendment.